Citation NR: 9733238
Decision Date: 09/29/97 Archive Date: 10/02/97
DOCKET NO. 94-00 433 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Albuquerque, New Mexico
THE ISSUE
Propriety of the creation of an overpayment of Chapter 31
benefits.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Roberto D. DiBella, Associate Counsel
INTRODUCTION
The veteran served on active duty in the Air Force from
October 1982 to January 1986 and in the Army from May 1986 to
January 1988.
This matter purportedly arises on appeal from a May 1993
letter from a RO Vocational Rehabilitation and Counseling
Officer in which the veteran was informed that her deviation
from her amended Individualized Written Rehabilitation Plan
had created an overpayment of $1,563. This letter was not
found in the claims folder, but is referenced in the
Statement of Case, signed in August 1993.
By decision of August 1994, the Board of Veterans’ Appeals
(Board) administratively remanded the case for development of
a new issue raised by the veteran. The case is again before
the Board for appellate review.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that it has no jurisdiction to
proceed with a review of this appeal.
FINDINGS OF FACT
1. On July 25, 1994, prior to the promulgation of a decision
in the appeal, the Board received notification from the
veteran requesting a withdrawal of this appeal.
2. During the course of this appeal, the veteran had raised
the additional issue of waiver of overpayment, which was the
basis of the August 1994 administrative remand by the Board;
however, a waiver of overpayment was granted by the RO in
October 1994.
CONCLUSION OF LAW
The criteria for withdrawal of her Substantive Appeal by the
veteran have been met. 38 U.S.C.A. § 7105(b)(2) (West 1991 &
Supp. 1997); 38 C.F.R. §§ 20.202, 20.204(b), (c) (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
During her personal hearing before a Member of the Board at
the RO, the veteran’s representative indicated that the sole
issue on appeal was that of the propriety of the creation of
an overpayment of Chapter 31 benefits. In fact, in its
Informal Brief Presentation, the veteran’s representative
stated that a waiver of overpayment was granted for the total
amount on October 18, 1994. Therefore, the representative
believed that the only issue before the Board was the
“propriety of creation of debt.”
In a statement dated on June 24, 1997, the veteran stated
that she no longer disputed the amount of the overpayment.
She was now requesting a waiver of this amount. On July 25,
1994, the RO informed the Board by telephone that the veteran
had requested to withdraw her appeal and have the issue of
waiver considered by the RO. The veteran’s claims folder was
at the Board at the time of her request; therefore, the case
was administratively remanded by the Board in August 1994 in
order for the RO to develop the issue of waiver of payment
for a Chapter 31 debt.
A waiver of overpayment for $1,563.00 was granted by the RO
in October 1994. The veteran was informed of this decision
in October 1994. There is no evidence in the claims folder
subsequent to October 1994 which indicates that the veteran
disagreed with the RO’s October 1994 decision or that she
desired to reopen her previously withdrawn propriety of
creation of overpayment of Chapter 31 benefits claim.
A veteran may withdraw her appeal in writing at any time
before the Board promulgates a decision. 38 C.F.R. § 20.204
(1996). When a veteran does so, the withdrawal effectively
creates a situation where there is a failure to allege error
of fact or law. Consequently, in such an instance, the Board
does not have jurisdiction to review an appeal. A dismissal
is appropriate in such a case. 38 U.S.C.A. § 7105(d) (West
1991 & Supp. 1997).
The veteran’s representative has already conceded that the
issue of waiver of payment for a Chapter 31 debt is not
before the Board as this benefit has been granted by the RO.
38 U.S.C.A. § 7105(d)(1) (West 1991 & Supp. 1997). The
veteran’s letter clearly indicated that she was no longer
interested in pursuing the propriety of creation of
overpayment of Chapter 31 benefits claim, and that she was
only interested in obtaining a waiver of payment. As this
waiver has been granted by the RO, the Board is of the
opinion that the veteran is no longer alleging an error of
fact or law on appeal. Therefore, since the Board does not
have jurisdiction in such an instance, a dismissal is
appropriate in this case
ORDER
The appeal of the claim for propriety of the creation of an
overpayment of Chapter 31 benefits is dismissed.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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